CASE SUMMARIES

June 2008

DESPITE VIOLATION OF FIRST AMENDMENT RIGHTS, QUALIFIED IMMUNITY PROTECTED OFFICERS FROM AWARD OF DAMAGES

FOGELv. COLLINS, et al.  531 F.3d 824

On May 25, 2004, Sergeant Michael Hooker of the Grass Valley Police Department received an anonymous phone call about a parked white Volkswagen van. The caller reported that messages written on the van frightened her. Sergeant Hooker located the unattended 1970 van in the lot of an apartment complex. The words “I AM A FUCKING SUICIDE BOMBER COMMUNIST TERRORIST!” were painted in block letters on the back of the van above the rear window. On the rear window was painted “PULL ME OVER! PLEASE, I DARE YA[.]” Below the window in slightly smaller letters was the text “ALLAH PRAISE THE PATRIOT ACT . . . FUCKING JIHAD ON THE FIRST AMENDMENT! P.S. W.O.M.D. ON BOARD!” A small American flag was attached to the van below the lettering. The rest of the van was decorated with slogans and paintings that had no political or threatening character.

The van belonged to Matthew Fogel, a 22-year-old resident of Nevada City, a town four miles away from Grass Valley. Sgt. Hooker concluded that the messages on the van were just “political satire” and returned to the police station after taking digital photographs of the van. Hooker then called his superior, Captain  Johnson, and read Johnson the words on the van. Capt. Johnson disagreed with Hooker’s characterization of the writing as mere satire, and he was “quite certain that a criminal act had been committed,” and that the van needed to be removed from its location at the apartment lot.

Capt. Johnson ordered Sgt. Hooker to “handle this as a bomb threat,” citing the high terror alert in the country. Based on Johnson’s instruction, Hooker determined  this was not protected speech, but was criminal, and assigned the criminal investigation to Officer Perry. Perry contacted the Department of Homeland Security and the FBI and learned Fogel had no criminal history, and that DHS was “familiar with Fogel . . . as being a local anti government type of person” who was considered a “local nut.”

Sgt. Hooker returned to the van, with Officers Perry, Collins, McClaughry and  McKenzie. They located Fogel in an apartment in the complex with friends, and when asked about his van, Fogel said that he had painted the messages earlier that day. When asked to explain the messages on the van, the officers contended that Fogel stated he wanted to “scare people into thinking,” to “terrorize the people of Nevada County like the Iraqi people are being terrorized by the U.S. military.”

Despite Fogel’s purported statements, Sgt. Hooker found Fogel mild mannered, who assured the officers that there was no bomb. Fogel encouraged a search of his van which revealed nothing illegal.
Officer Perry arrested Fogel for violation of California Penal Code § 422 for “willfully  threaten[ing] to commit a crime which will result in death or great bodily injury to another person”; § 148.1 for a “false report of secretion of explosive or facsimile bomb”; and § 415 for the “use[ ] of offensive words in a public place which are inherently likely to provoke an immediate violent reaction.”

Sgt. Hooker called a private towing company to impound the van and instructed the company not to release the van until Fogel removed or painted over the writing. Fogel was told he would have to remove or paint over the entire message in order to retrieve his vehicle from the impound lot. Fogel was held in the Grass Valley jail overnight. The District Attorney declined to bring charges, and Fogel was released from custody  the following morning. Fogel recovered his van later that day after painting over the messages with white paint.

Fogel filed a § 1983 suit for damages against the Grass Valley Police Department and the officers  in their individual capacities. He challenged his arrest and the seizure of his van, contending that his First, Fourth, and Fourteenth Amendment rights had been violated. The district court granted summary judgment to all of the defendants, holding that there was a genuine issue of disputed fact whether the writing on the van was a true threat and thus unprotected by the First Amendment. For purposes of qualified immunity, the court assumed that the writing was protected by the First Amendment and that the individual officers had violated Fogel’s rights.  It then held that the individual officers were entitled to qualified immunity, and further held that the City of Grass Valley had not acted pursuant to an unconstitutional policy or practice.

The United States Court of Appeals, Ninth Circuit affirmed, holding  that while the individual defendants had violated Fogel’s First Amendment rights by arresting him, impounding his van, and making him paint over his message, the district court’s decision that qualified immunity protected the defendants from a claim for damages was correct.

The Ninth Circuit noted that although it concluded that the officers violated the First Amendment when they arrested Fogel, impounded his van, and forced him to remove his message, it could not say that existing precedents would have alerted the police officers that it was a violation. As the district court pointed out, when the officers acted, there was no reported case in which a person in the post-September 11 environment satirically proclaimed himself or herself to be a terrorist in possession of weapons of mass destruction. The Ninth Circuit pointed out that it does not, by invocation of September 11, 2001, suggest that the First Amendment provides less protection than before September 11. Rather, it recognized that what might previously have been understood as relatively harmless talk might, in the immediate aftermath of September 11, have been understood to constitute a real threat.

The test for qualified immunity is whether any reasonable officer would make the constitutional error in question, not whether a reasonable person would. “We cannot conclude that at the time of the incident, all reasonable officers would have concluded that Fogel’s speech was protected by the First Amendment. . . .”

June 2008

PITCHESS MOTION REQUIRES CUSTODIAN OF RECORD TO COMPLY WITH ALL PROVISIONS REGARDING PRODUCTION OF RECORDS

People v. Wycoff 164 Cal.App.4th 410 (2008)

At 3:30 a.m. Los Angeles Police Officer Michael Barrios and his partner were patrolling in Wilmington when they saw Wycoff and Josselle Hernandez standing on a street corner. As they drove closer, Officer Barrios observed Wycoff hand Hernandez something. When Hernandez saw the patrol car, she brought her hand up to her mouth and put something inside. Wycoff turned his back away from the officers, appeared to manipulate his rear waistband, and then dropped a plastic baggy he was holding in his right hand. Officer Barrios recovered the baggy, which contained an off-white substance that resembled rock cocaine. The officer also recovered an off-white substance resembling rock cocaine from Hernandez's mouth.

Hernandez pled guilty to simple possession of a controlled substance, and also pled guilty and was sentenced to prison for the sale of a controlled substance based on a different incident.

Wycoff was charged with possessing cocaine.  The jury found Wycoff guilty of selling cocaine base as charged, and also found him guilty of the lesser  included offense of simple possession.

Prior to trial, Wycoff filed a motion pursuant to Pitchess v. Superior Court seeking discovery of complaints against Officer Barrios regarding the filing of false police reports. The trial court held an in camera hearing regarding the officer's personnel file, and concluded that the files contained no such information. Wycoff requested and the Appellate Court independently examined the sealed transcript and records produced in response to his discovery motion.

The Appellate Court reviewed the transcript, and concluded that the record was insufficient for it
to determine whether the trial court properly exercised its discretion in denying discovery, stating:

"Although the custodian of records was required to submit for review only those documents that were potentially responsive to the discovery request, our Supreme Court has directed that '[t]he custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant's Pitchess motion.' [Citation.] Moreover, 'if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court.' [Citation.] [¶] Accordingly, in cases such as this where the custodian of records does not produce the entire personnel file for the court's review, he or she must establish on the record what documents or category of documents were included in the complete personnel file. In addition, if it is not readily apparent from the nature of the documents that they are nonresponsive or irrelevant to the discovery request, the custodian must explain his or her decision to withhold them. Absent this information, the court cannot adequately assess the completeness of the custodian's review of the personnel files, nor can it establish the legitimacy of the custodian's decision to withhold documents contained therein."

The Court concluded "[w]e therefore conditionally reverse the judgment and remand for a new Pitchess hearing in which the proper procedure is followed." 

June 2008

WHERE DEFENDANT MEETS PITCHESS THRESHOLD COURT IS OBLIGATED TO REVIEW ALL REQUESTED PERSONNEL RECORDS

Uybungco v. Superior Court (San Diego Police Dept.) 163 Cal.App.4th 1043 (2008)

The charges against Uybungco arose out of an event summarized in the reports of four separate police officers. Uybungco requested discovery from the personnel files of Officers Hall, Decesari, Curran and Vasquez, alleging that the reports were falsified.

Uybungco was charged with two misdemeanor offenses: resisting a peace officer (Pen. Code, § 148, subd. (a)(1)) and vandalism (id., § 594, subds. (a), (b)(2)). Uybungco pleaded not guilty.

In his Pitchess motion Uybungco sought any evidence of, or complaints of: (1) excessive force; (2) aggressive conduct; (3) unnecessary violence; (4) unnecessary force; (5) false arrest;  (6) false statements in police reports; (7) false claims of probable cause; (8) false testimony; and (9) any other evidence of complaints of dishonesty against Officers Hall, Decesari, Curran and Vasquez.  He attached a sworn declaration to the motion specifically contending that Officers Hall, Curran, Vasquez and Decesari lied in their reports by stating that Uybungco cocked his arm as if to hit Curran, resisted arrest, and/or knocked the patrol car window off of its track. Uybungco also alleged that Officers Hall, Vasquez and Decesari used excessive force in subduing him.

Uybungco's Pitchess motion was opposed by the City Attorney, appearing on behalf of the San Diego Police Department. After hearing argument on the motion, the trial court ruled that it would review the personnel files of Officers Hall and Decesari for evidence related to the allegation of excessive force, and rejected the defense request that it review the files of Officers Vasquez and Curran.

Uybungco petitioned for a writ of mandate in the appellate division of the superior court. The appellate division issued a summary denial of the petition. Uybungco then filed a petition for a writ of mandate in Court of Appeals, which was also summarily denied. Uybungco then sought review of the Appellate Court's order in the Supreme Court, which granted Uybungco's petition for review and ordered the Appellate Court to vacate its previous order and issue an order to show cause "why defendant is not entitled to discovery of police officer personnel records pertaining to complaints of the filing of false police reports by all four officers." The Appellate Court issued the order to show cause.

After hearing and review of the record the Appellate Court directed the superior court to vacate its ruling and conduct an in camera review of the four officers' personnel files.

June 2008

REIMBURSEMENT FOR TRAINING OFFICER WHO RESIGNS PRIOR TO CONTRACT TERM DOES NOT VIOLATE FLSA

City of Oakland v. Hassey 163 Cal.App.4th 1477 (2008)

The City of Oakland sued Kenny D. Hassey for breach of contract after Hassey failed to reimburse the city for the costs of training him to become a police officer with the Oakland Police Department. Hassey filed a cross-complaint alleging that the agreement to repay Oakland for training costs violated the Fair Labor Standards Act (29 U.S.C. §§ 201-219 (FLSA)) and various state laws. 

The Court of Appeals concluded that Hassey failed to establish that the agreement to reimburse Oakland for training costs violated the FLSA, although Oakland's withholding of Hassey's final paycheck to cover his debt did.

 The Court of Appeals concluded that Hassey failed to establish that the agreement to reimburse Oakland for training costs violated the FLSA, although Oakland's withholding of Hassey's final paycheck to cover his debt did.

The Appellate Court noted that to encourage police officers to stay with the department longer, Oakland entered into a memorandum of understanding (MOU) with the Oakland Police Officers’Association in 1996 authorizing the city to require those who went through training at its academy to reimburse the city for training costs if the person left the police department before completing five years of service.  The MOU also provided, "Repayment shall be due and payable at the time of separation and the City shall deduct any amounts owed under this provision from the employee's final paycheck. If said deduction does not fully reimburse the City for outstanding costs, the balance shall thereupon be due and owing."

The Appellate Court agreed with the trial court’s reliance on Heder v. City of Two Rivers, Wisconsin (7th Cir. 2002) 295 F.3d 777, which it also found persuasive upholding a reimbursement agreement similar to the one at issue here.

June 2008

GOVERNOR HAS AUTHORITY TO DECLARE PRISON OVER-CROWDING EMERGENCY AND AUTHORIZE OUT-OF-STATE PRIVATE CONTRACTS

California Correctional Peace Officers Assn. v. Schwarzenegger 163 Cal.App.4th 802 (2008)

In October 2005, California's prison inmates numbered 166,148, an historic high greatly exceeding the capacity for which the prisons were designed. It is undisputed that severe overcrowding of state prisons posed a serious threat to the health and safety of inmates, correctional officers, and the general public because it (1) heightened the risk of inmate violence against other inmates and prison staff, (2) caused power failures that jeopardized prison security, (3) resulted in sewage spills and environmental contamination that polluted groundwater and increased the risk of the transmission of infectious illnesses, and (4) required the early release of offenders from county jails because of the inability of the California Department of Corrections and Rehabilitation (CDCR) to expeditiously move inmates from jails to state prisons.

After the Legislature rejected his proposals to deal with the problem, Governor Schwarzenegger called a special session of the Legislature to "address this crisis." However, the Legislature adjourned without taking any remedial action. Invoking the California Emergency Services Act (Gov. Code § 8550 et seq.), the Governor declared a prison overcrowding state of emergency and then authorized the CDCR to contract with out-of-state private prisons to house some of California's inmates.

The California Correctional Peace Officer's Association (CCPOA) and other plaintiffs filed a petition for writ of mandate and complaint for declaratory and injunctive relief, seeking (1) a declaration that the prison overcrowding emergency proclamation was not authorized by the Emergency Services Act or any other law, (2)  that the contracts signed pursuant to the proclamation violate the civil service mandate of the California Constitution (Cal. Const., art. VII, § 1, subd. (a)), and (3) an injunction prohibiting the Governor "from issuing any further orders under the ostensible authority of his Proclamation." Plaintiffs moved to enjoin defendants from performing "any inmate transfer contract signed pursuant to the Governor's Proclamation" and from "[e]ntering into any other similar contracts," and prohibiting the expenditure of "any State funds pursuant to the existing inmate transfer contracts."

After a hearing, the trial court entered a judgment against the Governor and other defendants (1) declaring the Governor's state of emergency proclamation is "unlawful," (2) declaring the contracts entered into pursuant to the proclamation "are unauthorized by the Emergency Services Act or any other law, and violate Article VII of the California Constitution," (3) issuing a writ of mandate "ordering and commanding Defendant . . . ARNOLD SCHWARZENEGGER to perform all acts necessary to revoke the 'Proclamation of a Prison Overcrowding State of Emergency' dated October 4, 2006," and further "command[ing] SCHWARZENEGGER to file a return within 30 days, setting forth what he has done to comply with the Writ," (4) permanently enjoining the defendants "from performing -- whether by payment of money, transfer of inmates out of the State's custody, or in any other respect -- any inmate-transfer contracts signed pursuant to the Governor's Proclamation," and (5) awarding plaintiffs their costs of bringing the lawsuit.

The Appellate Court reversed the judgment, holding that the Governor did not exceed his powers in declaring a state of emergency based on prison overcrowding, and that the CDCR's contracts with out-of-state private prisons do not violate article VII of California's Constitution.

The Court pointed out that the Emergency Services Act endows the Governor with the power to declare a state of emergency "in conditions of . . . extreme peril to life, property, and the resources of the state" so as to "mitigate the effects of [the emergency]" in order to "protect the health and safety and preserve the lives and property of the people of the state." (Gov. Code, § 8550.) The Act confers upon the Governor broad powers to deal with such emergencies. (§ Gov. Code, § 8550.) A "primary purpose" of the Act "is to ensure that 'all emergency services functions' of the State and local governments, the federal government, and 'private agencies of every type,' 'be coordinated . . . to the end that the most effective use be made of all manpower, resources, and facilities for dealing with any emergency that may occur.' (Gov. Code, § 8550.)

June 2008

TRIAL COURT ERRORS, DEPARTMENT MANUAL, AND OFFICER ACTIONS IN RESPONDING TO BACKUP REQUEST, CREATED LIABILITY FACTOR

Monroy v. City of Los Angeles 164 Cal.App.4th 248 (2008)

On September 4, 2004, Yesenia Monroy was driving a Mitsubishi Mirage eastbound on Third Street in Los Angeles. Her child (Phoebe P.) was sitting in a child safety seat in the back of the Mitsubishi.

Los Angeles Police Department Officer Felipe Jesus Arreola was operating a Los Angeles Police Department (LAPD) vehicle. His partner, Jaime Garcia, was riding as a passenger. The officers were on routine patrol when they heard a radio call by one of the gang units in the area requesting backup for a foot pursuit of a man with a gun. The operator designated the call as "Code 2" and directed another police unit to respond.

At the intersection of Pleasant Avenue and Boyle Avenue, Officer Arreola made a right turn and headed southbound. It was a very short distance to the intersection of Boyle Avenue and First Street. Officer Arreola turned on his siren and his overhead emergency lights, passed through the intersection at Boyle Avenue and First Street where there was a red light, and continued southbound on Boyle Avenue toward Third Street.  Once Officer Arreola passed through the intersection of Boyle Avenue and First Street, he turned off the siren. He did not remember if he also turned off the overhead lights. Officer Arreola accelerated and within moments, his vehicle was almost at Third Street where he saw Monroy's vehicle. Officer Arreola applied the brakes of the patrol vehicle, but could not avoid colliding with Monroy. Neither officer notified the dispatcher that they had upgraded the call to a Code 3.

Officer Arreola and Phoebe P. suffered serious injuries. Monroy was catastrophically injured and could not give a statement or attend the trial. After the close of evidence, the trial court instructed the jury with the law pursuant to Vehicle Code section 21055, as requested by defendants.  The jury rendered a nine-to-three verdict in favor of defendants, finding Officer Areola had not been negligent.

Plaintiffs  appealed  and the Appellate Court  reversed. The Appellate Court opined that the trial court made reversible error in providing the jury with instructions relating to Vehicle Code section 21055.

The Court pointed out "[t]he effect of Vehicle Code sections 21055 and 21056 is: where the driver of an authorized emergency vehicle is engaged in a specified emergency function he may violate certain rules of the road, such as speed and right of way laws, if he activates his red light and where necessary his siren in order to alert other users of the road to the situation. In such circumstances the driver may not be held to be negligent solely upon the violation of specified rules of the road, but may be held to be negligent if he fails to exercise due regard for the safety of others under the circumstances. [Citation.] Where the driver of an emergency vehicle fails to activate his red light, and where necessary his siren, he is not exempt from the rules of the road even though he may be engaged in a proper emergency function, and negligence may be based upon the violation of the rules of the road.” [Citation.] (City of Sacramento v. Superior Court, supra, 131 Cal.App.3d at pp. 402-403.)”

The Appellate Court made note of the LAPD Manual which set forth the following: "Code 2" is "an urgent call and shall be answered immediately. The red light and siren shall not be used, and all traffic laws shall be observed." "Code 3" is an emergency call, exempting the officer from the rules of the road, and thus the driving guidelines and restrictions set forth in the Vehicle Code, "only when officers sound a siren as reasonably necessary and the officers' vehicle displays a lighted red lamp visible from the front." "Any call may justify a 'Code 3' if any of the following elements are present:  [¶] A serious public hazard. [¶] The preservation of life. [¶] A crime of violence in progress. [¶] The prevention of a crime of violence. [¶] An immediate pursuit. [¶] A unit at the scene requests another unit 'Code 3.'  The final decision for the use of 'Code 3,' other than in response to a directed radio call, shall be made by the vehicle operator. An officer shall immediately broadcast his intention to proceed 'Code 3' when the decision is based on other than a directed police radio call."

Lastly, the Court noted that the trial court severely limited plaintiffs' cross-examination of witnesses and introduction of evidence, emphasizing these restrictions failed to recognize the importance of cross-examination, which is crucial, especially of expert witnesses.